The Supreme Court will consider arguments about free speech in a case reviewing whether government agencies coerced Big Tech platforms such as Facebook and X into removing posts critical of vaccines and mask mandates, setting up a decision with major implications for social media.
Oral arguments are scheduled on Monday for Murthy v. Missouri, a case dealing specifically with allegations that the Biden administration coerced social media companies into censoring content. The case, brought by the Republican attorneys general of Missouri and Louisiana, is just the latest of several that will determine which aspects of social media expression are protected by the First Amendment.
Murthy v. Missouri is an important case because it deals with free speech protections related to social media and “protections for the First Amendment from informal pressures that fall short of direct regulation,” Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, told the Washington Examiner.
The two attorneys general sued the Biden administration in 2022, alleging that the government collaborated with Big Tech companies to take down posts promoting certain viewpoints. These include posts that were skeptical of the COVID-19 vaccine as well as discussions of mask mandates. The attorneys general released emails detailing communications between Biden administration officials and social media executives that they argued were evidence of corroboration to censor controversial speech. The Biden administration, in response, argued in its Supreme Court brief that the evidence provided by the states is “unsupported or demonstrably wrong” and that they haven’t proven that government officials coerced any censorship.
Louisiana-based U.S. District Judge Terry Doughty issued an order in July 2023 limiting the federal government’s communications with social media companies, saying that the plaintiffs provided evidence of a “massive effort” from the White House and federal agencies to “suppress speech based on its content.” The subsequent U.S. Court of Appeals for the 5th Circuit ruling on Sept. 11 agreed with the decision. However, it narrowed the number of government-affiliated entities affected by the decision. The Supreme Court decided to block the order in October and allow the agencies to communicate while considering the legitimacy of Doughty’s order.
On Monday, the court will consider questions about whether the people whose content was removed by social media platforms were actually injured by the removals and whether communications between government agencies and social networks transformed the decisions made by the companies’ trust and safety teams into state action, which would violate a person’s First Amendment rights.
One of the overlying questions that may arise is what sorts of communication should be considered government coercion.
Murthy is a “really important case at this moment because we’re trying to balance the level of input government can have in the content moderation policies and practices of privately owned companies,” Kevin Goldberg, First Amendment specialist at the Freedom Forum, told the Washington Examiner. The Freedom Forum is a nonpartisan group promoting free speech.
Companies have a right to be free from undue influence from government agencies, Goldberg said. At the same time, private companies and federal agencies will inevitably speak with each other about different matters, which means that federal agencies may influence the decisions made by company leaders. The gray area is what sorts of speech would be considered coercive or forcing the opinions of the federal agency upon the company.
The questions surrounding coercion center on whether the court can determine that the government employees in question encouraged, coerced, or compelled another party to comply with a request without using their respective legislative, judicial, or regulatory power. This sort of coercion is also known as “jawboning” and describes a broad spectrum of speech-related activities. The coercion could, for instance, be reminders to a private company about how the law works. It could also be explicit threats to take action if something isn’t done.
A good example of this would be National Rifle Association v. Vullo, a Supreme Court case for which there will be oral arguments the same day as Murthy. Maria Vullo, then the head of the New York Department of Financial Services, issued guidance in 2018 after the Parkland, Florida, school shooting in which she urged banks and insurance companies that did business in New York to consider the “reputational risks” from doing business with the NRA and encouraged them to cut their ties with the group. The NRA took Vullo to federal court, alleging that she had violated the advocacy group’s right to freedom of speech.
Murthy v. Missouri is the fifth case this term that the Supreme Court has considered around social media and the First Amendment. The court heard arguments for O’Connor-Ratcliff v. Garnier and Lindke v. Freed last October, reviewing whether politicians blocking other users on social media would be considered a violation of the First Amendment. It also heard the arguments in late February for NetChoice v. Moody and NetChoice v. Paxton, a case that could determine if states should be allowed to penalize companies for their content moderation decisions.
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“A common thread running through all of these cases is efforts to expand government power and evade legal and constitutional restrictions,” Corn-Revere argued.
The court’s opinions on the matter are expected to be released by the end of June.